Pro bono guide to the climate crisis - Australian Pro Bono ...
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pro bono to the
guide climate
crisis
PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
foreword
Dr. David R. Boyd,
United Nations Special Rapporteur
on human rights and the environment
The world faces a climate crisis. Rising levels of share of the world’s energy supply provided by
greenhouse gases in the atmosphere, driven by fossil fuels has remained stubbornly unchanged
the combustion of fossil fuels, industrial agriculture at 81 per cent, and global greenhouse gas
and deforestation, have caused global average emissions are up 60 per cent.
temperatures to increase 1.1°C above pre-industrial
levels. This level of warming is unprecedented in the
last ten thousand years, an interglacial period of
climate stability that enabled the rise of human
civilization. Today’s levels of atmospheric carbon “The impacts of climate change
dioxide last occurred three million years ago, during represent the greatest threat to our
the Pliocene epoch before homo sapiens evolved. Our national security, our economy, our
species is in uncharted, dangerous waters.
health and our environment. Legal
Billions of people are already suffering adverse
professionals are integral to solving
effects caused by the increased frequency, intensity
and duration of extreme weather events, melting the climate crisis, from assisting
of glaciers, rising sea levels, storm surges, saltwater Indigenous groups, working on law
intrusion, ocean acidification, changes in precipitation, reform activities to running strategic
floods, heatwaves, droughts, wildfires, desertification,
litigation. As a lawyer and Member of
the destruction of ecosystems, biodiversity loss and
the spread of water-borne and vector-borne disease. Parliament, I warmly welcome this
Climate change interacts with poverty, conflict, guide and initiative to encourage
resource depletion and other factors to threaten more lawyers to contribute their skills
human rights including the rights to life, health, food,
and expertise to the most pressing
water and sanitation, a healthy environment, culture,
an adequate standard of living, housing, property and issue of our time.”
development.
Despite 28 years of commitments dating back to
the United Nations Framework Convention on Zali Steggall OAM
Climate Change, the world is not yet headed in the Federal Member of Parliament
right direction, let alone addressing the crisis with for Warringah, Australia
the requisite urgency. Since 1990, global energy
consumption has increased by 57 per cent, the
2
FOREWORD PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
“The challenge of the climate
crisis is colossal, and its
impacts will be pervasive.
At the EDO we’re seeing a
rapidly growing desire from
firms, big and small, to do pro
bono work connected with
helping solve the challenge of IMAGE BY SUNGROW EMEA / UNSPLASH
climate change. The impacts
are here and now and our
profession, and the pro bono Addressing climate change raises issues of justice today. Some 49 countries, responsible for 36 per
world in general, is waking and equity, between and within nations and cent of global emissions, have already seen their
generations. The main contributors to the crisis greenhouse gas emissions peak and begin
up to that reality. have reaped immense economic benefits and declining. Concurrently addressing climate
This important guide thus have the greatest responsibility to resolve it. change and air pollution, since the sources of
The adverse impacts of climate change these problems overlap, could prevent millions
highlights the great variety in
disproportionately harm people whose contribution of premature deaths every year while securing
opportunities for lawyers to to the problem is minimal and who lack the trillions of dollars in benefits.
contribute through pro bono resources to adapt to the changes.
This informative and inspiring publication
work. Those opportunities are The Intergovernmental Panel on Climate Change describes the many ways that lawyers and
exciting and growing. Most has identified “rapid and far-reaching transitions” the legal profession can dedicate their extensive
importantly, lawyers across the in energy, land use, infrastructure and industrial expertise, experience and resources to tackling
systems, stating that these changes would be the climate crisis. Law in its many variations is
profession want to – and can – an essential element of creating, implementing
unprecedented in terms of scale and would require
make a difference.” deep emission reductions across all sectors. To meet and enforcing climate solutions, from legislative
the 1.5°C target set in the 2015 Paris Agreement and policy reforms to litigation, from the local to
requires reducing emissions 45 per cent below 2010 global levels. Some lawyers are already engaged,
David Morris
levels by 2030, phasing out unabated fossil fuel as illustrated in this report, but far more are
CEO of the Environmental
Defenders Office, Australia burning by mid-century, transforming the global needed.
food system, and reversing deforestation.
Ultimately, climate change is not just about
There is some good news. Dramatic declines in the science or technology. It’s about justice. The legal
cost of renewable energy are accelerating the profession has a moral obligation to stand up and
implementation of clean energy. Solar electricity join the movement for a cleaner, greener, healthier
generating capacity now exceeds 600 gigawatts future. Everyone, everywhere, has the right to live
globally, more than 600 times higher than in 2000. in a healthy environment, which necessarily
Total wind electricity generating capacity has soared includes a safe climate.
from 17 gigawatts in 2000 to over 600 gigawatts Dr. David R. Boyd
©2020 Australian Pro Bono Centre
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PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
Introduction
Climate change is one of the defining issues Why should I do Skills and experience
of the 2020s. The actions we take now will
affect the world for generations to come.
pro bono work Lawyers have the skills, opportunities and resources to
tackle this challenge. While our individual actions may
The overwhelming scientific consensus is that the
to help combat seem small, collectively the legal profession can show
Earth’s climate is warming significantly, and that
this warming is attributable to human activity.1
the climate crisis? leadership – and have a substantial impact on the
climate crisis.
Climate change is having – and will continue to have – Lawyers with a wide range of skills and experience
catastrophic effects on our natural environment, Professional responsibility can get involved in climate-related pro bono work.
and will severely impact the health, the lives and It is the view of the Australian Pro Bono Centre (the This is not just an opportunity for lawyers with
livelihoods of people across the globe. Further, the Centre) that lawyers have an ethical professional knowledge of environmental and planning law – there
adverse impact on the disadvantaged will be far responsibility to provide legal assistance to those who are many ways that lawyers can use their existing skills
greater than on the wealthy. Indeed, climate change would otherwise be unable to access justice.4 For many and resources to work towards climate justice.
has been characterised as a human rights issue.2 individuals, not-for-profit organisations (NFPs),5 and For example, you will find activities in this guide
It has been predicted that taking a ‘business as usual’ social enterprises6 battling climate change, limited that match your expertise if you are a lawyer with
approach to tackling climate change, rather than a resources mean that pro bono assistance is their only skills in any of the following areas of law: employment,
more sustainable development pathway, will cost the path to access to justice and legal advice. Lawyers who corporate, criminal, intellectual property, wills and
world US$9.87 trillion by 2050.3 undertake climate-related pro bono work will not just estates, insurance, bankruptcy, litigation, family,
contribute to mitigating the risk or impact of climate taxation, immigration, and human rights (among
Under the 2015 Paris Agreement, numerous countries change, but also to improving access to justice. many others).
have committed to the objective of limiting the global
average temperature increase to well below 2°C, and
to assisting nations to adapt to climate change. Many 1
‘Scientific Consensus: Earth’s Climate is Warming’, NASA (2020), accessible here.
lawyers want to make a meaningful contribution to See Case Study 1 in Activity #1: Running strategic climate litigation below.
2
3
Toby Roxburgh et al, Global Futures: Assessing the Global Economic Impacts of Environmental Change to Support Policy-Making (Report, February 2020) 3.
mitigating this crisis. This guide aims to provide those 4
For that reason, the Centre encourages all Australian lawyers to sign up to our National Pro Bono Target. For more information about the Target, see ‘National Pro Bono Target’, Australian Pro Bono
lawyers with concrete ideas and information about Centre (2020), accessible here. For a definition of ‘pro bono legal services’ please see the Appendix to the guide.
how they can undertake pro bono work to help 5
For a definition of a ‘not-for-profit organisation’, see: Australian Pro Bono Centre, Pro Bono Partnerships and Models – A Practical Guide to What Works (2016) Chapter 13, accessible here.
combat climate change. 6
For a definition of a ‘social enterprise’, see ‘Guidance notes on reporting ‘pro bono legal services’’, Australian Pro Bono Centre, accessible here.
4
PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
WYNAND VAN POORTVLIET / UNSPLASH
You also do not need to be a practising lawyer. This is reflected by the development of Environment
There are opportunities to contribute by providing legal Social and Governance (ESG) policies, which aim to Ready to get started?
education, conducting training, and undertaking law bolster the role of the private sector in creating a more
reform and legal research. equitable and sustainable world. Involvement in pro Page 6 has a list of each of the pro bono activities
bono legal work that responds to climate change and covered in this guide. Review the list, and read more
This guide does not purport to include every possible
promotes sustainability is a clear demonstration of an about the activities that sound interesting to you and
type of climate-related pro bono work. We encourage
organisation’s commitment to work with social purpose. your organisation and, where appropriate, align with
lawyers to be creative, and determine how they can
your expertise. Gather some inspiration from the case
adapt their skills and expertise to contribute to this Other benefits of undertaking this work may include:
studies. Then, if you’re ready to get involved, each
important cause.
• Building organisational and individual knowledge section of the guide has advice about how to get
As with pro bono work generally, undertaking this in growing areas of law, with increasingly started.
work provides a sense of empowerment through significant commercial implications
If you need professional indemnity insurance for
addressing a problem that will personally affect
• Attracting good publicity for being a leader in your pro bono work, there is more information about
lawyers themselves, their places of work, their families
an area of public concern (and avoiding negative the National Pro Bono Professional Indemnity
and their communities.
publicity associated with being perceived as Insurance Scheme on page 39. If you would like
Responsible business and social purpose indifferent to this global crisis) information about obtaining an appropriate practising
The Ethics Index 2019, published by the Governance • Attracting and retaining talented lawyers – by certificate, see here. And if you are looking for
Institute of Australia, found that 91% of Australians think offering them the opportunity to undertake pro guidance on how to manage concerns regarding
that Australian businesses – such as law firms – have bono work on an issue that is important to them. commercial conflicts of interest, see page 37.
an ethical obligation to take action on climate change.7 Lawyers are uniquely placed to shape laws, alter
There is also a growing expectation that protection of business and community practices, hold decision-
our planet should be integrated into the responsible makers accountable, and ensure climate issues
business practices of organisations in the private receive the attention and prominence they deserve.
sector around the world. The objectives of corporate 7
Governance Institute of Australia, Ethics Index 2019 (Report, 2019) 44.
governance are shifting from shareholder primacy Best of luck on your journey
8
Larry Fink, ´A Fundamental Reshaping of Finance´, BlackRock (January 2020), accessible here;
(profit maximisation) to incorporating social purpose, Klaus Schwab, ´Davos Manifesto 2020: The Universal Purpose of a Company in the Fourth to help combat the climate crisis!
stakeholder focus and long term sustainable growth.8 Industrial Revolution´, World Economic Forum (2 December 2019), accessible here.
5
PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
Here are 15 different ways that lawyers (and the places where they work)
can get involved in pro bono work to help combat the climate crisis:
1. Running strategic climate litigation / p.7 6. providing legal assistance 11. Giving legal support to NGOs and developing
to Indigenous peoples who are country delegations in international climate
2. Working on law reform activities / p.9 disproportionately affected by change negotiations / p.30
the climate crisis / p.20
3. Offering commercial legal advice to 12. Providing community legal education / p.32
not-for-profit organisations and social 7. Conducting legal research about the intersection
enterprises / p.12 between human rights and climate change / p.22 13. providing legal assistance to
communities particularly affected by
4. Establishing a climate justice clinic 8. Providing legal advice, information and advocacy the climate crisis / p.33
in collaboration with a university / p.15 to those fighting climate change / p.24
14. Delivering training to community lawyers / p.34
5. Providing a secondee to a civil society organi- 9. Providing legal information and advice
sation working to combat climate change (or, to those affected by a natural disaster / p.26 15. Expanding the role of the pro bono lawyer –
for individual lawyers or law embedding climate transition and
students, volunteering at such an 10. Offering immigration law advice to people displaced environmental factors in commercial
organisation) / p.18 by the effects of climate change / p.28 decision-making / p.35
> Dealing with concerns about commercial conflicts of interest: p.37
> National Pro Bono Professional Indemnity Insurance Scheme: p.39
> Appendix - Definition of ‘pro bono legal services’: p.40
> Acknowledgements: p.41
IMAGE BY
MATIN TAVAZOEI /
UNSPLASH.
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PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#1.
Climate litigation Pro bono lawyers can engage in pro bono climate
litigation most effectively through co-counselling.
can influence
This is when pro bono lawyers partner with a civil
government society organisation to undertake litigation for a
decision-making
Running
client. By contributing expertise, skills and other
and hold corporations resources, the pro bono provider can increase the
“directly accountable capacity of a civil society organisation to undertake
strategic for the climate
change implications
important public interest litigation.10 It is important
for pro bono lawyers to consult with civil society
climate
organisations before undertaking climate litigation,
of their actions”.9 to ensure they are working in harmony (and not
When lawyers in conflict) with the litigation being run by those
litigation work pro bono on
strategic climate
litigation, they
organisations.
Traditionally, climate litigation has involved filing
administrative law challenges to government
contribute to the decision-making under planning and environmental
development of legislation. However, there is increasing interest in
climate law around using alternative areas of law (such as corporations
law, negligence, and human rights law) to underpin
the world. novel approaches to strategic climate change
litigation.11
This creative approach is on display in Case Study 1
below, where the Environmental Defenders Office
(EDO) discusses launching the first ever human
rights challenge to an Australian coal mine. Case
Study 2 is an example of how judicial review
proceedings continue to be an important way to
influence government policy.
For further inspiration, you can browse the following
databases of climate litigation worldwide:
• Climate Change Litigation of the World
(run by the Grantham Research Institute at LSE)
• Climate Change Litigation Databases
(run by the Sabin Center for Climate Change Law
at Columbia Law School and Arnold & Porter).
How to get involved: Reach out to a civil society
organisation that works on climate-related
matters and ask if you can assist with current or
future strategic litigation. For a list of these
IMAGE BY
SIMON MIGAJ/ organisations in Australia, see here.
UNSPLASH
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#1. Running strategic climate litigation PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
CASE STUDY 1 CASE STUDY 2
ENVIRONMENTAL DEFENDERS OFFICE: BAKER MCKENZIE:
AUSTRALIA UNITED KINGDOM
EDO is the largest environmental legal centre in Baker McKenzie is acting for the Good Law Project and
the Australia-Pacific, providing community access environmental activists Dale Vince and George Monbiot in an
to justice, running ground-breaking litigation and action against the UK Secretary of State for Business, Energy and
advocating for environmental law reform. Industrial Strategy. This action aims to force the UK Government to
update its national energy policy to reflect and comply with the UK’s
In May 2020, EDO launched the first ever human rights
commitments and legal obligations in relation to climate change,
challenge to an Australian coal mine on behalf of
including the Paris Agreement and the UK Parliament’s declaration
clients Youth Verdict Ltd and The Bimblebox Alliance
of a climate emergency in 2019.
Inc. Youth Verdict is a diverse group of young people,
while The Bimblebox Alliance is a community group The current UK energy policy framework is based on outdated
of local landholders and farmers who want to protect national policy statements implemented in 2011. They form the
the Bimblebox Nature Refuge. Both groups have filed primary basis upon which energy projects in the UK, including oil,
objections to the Mining Lease and Environmental gas and coal energy projects, can be approved. Baker McKenzie’s
Authority for Clive Palmer’s Galilee Coal Project with clients’ aim is to force the UK Government to revisit and then update
the Land Court of Queensland. these national policy statements based on underlying legislation
requiring the national policy statements to be reviewed in
EDO will argue that the coal from the mine will fuel
certain circumstances, which their clients argue are applicable here.
climate change and therefore infringe upon six human
rights: the rights of the child; the right to life; the right The timing of the claim has been prompted by a high profile ruling
to be free from discrimination; the cultural rights of of the English courts in relation to the UK Government’s decision
Aboriginal and Torres Strait Islander peoples; the right to expand Heathrow Airport, where the Court ruled that the
to property; and the right to privacy. Government’s decision failed to take into account current UK
climate change policy, and therefore could not stand. Baker
EDO’s team, led by Brisbane Principal Solicitor Sean
McKenzie’s clients argue that that ruling is directly applicable
Ryan, draws on EDO’s extensive work for clients
to the status of the UK’s national policy statements on energy.
challenging the climate change impacts of Australian
coal mines. Pro bono support is provided by legal and Failing an adequate response by the Secretary of State to Baker
scientific volunteers. McKenzie’s letter before action, the clients will commence judicial
review proceedings.
If the case is successful, the Land Court of Queensland
will recommend that the Minister refuse the Mining
Lease and Environmental Approval. The case is
expected to conclude in 2021.
AUSTRALIAN COAL MINE / NEEDPIX
9
Jacqueline Peel, Hari Osofsky and Anita Foerster, ‘Shaping the ‘Next Generation’ of Climate Change Litigation in Australia’ (2017) 41(2) Melbourne University Law Review 793, 793.
10
For more information, see Australian Pro Bono Centre, Pro Bono Partnerships and Models: A Practical Guide to What Works (2016) Chapter 24, accessible here.
11
Peel, Osofsky and Foerster (n 9) 816.
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PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#2.
A powerful way lawyers can
advocate for action on climate
change is to undertake pro
Working on bono law reform activities.
law reform There are many ways to get involved. Examples include:
activities
• drafting model laws and regulations aimed at fighting climate
change, to provide to lawmakers (see Case Study 1 below)
• providing drafting assistance for – or feedback on –
proposed climate legislation (see Case Study 2 below)
• drafting law reform submissions which outline the need, for
example, to strengthen environmental protection legislation
or take emergency action to address climate change (see Case
Study 3 below)
• providing drafting assistance for written submissions to
the United Nations or other international organisations
• providing advocacy assistance to organisations campaigning
for changes to environmental laws.
Case Study 1 demonstrates a creative approach to law reform. The
Chancery Lane Project has mobilised the legal profession to not only
draft model laws, but also to rewrite precedent clauses in everyday
commercial contracts to drive climate action.
It is often effective for pro bono lawyers to undertake law reform
activities in partnership with a civil society organisation, such as a
community legal centre, charity or other not-for-profit organisation.
This has several advantages:
• civil society organisations that work on climate change matters
have significant expertise, have been undertaking law reform for
many years, and are involved in strategic and impactful projects
• your work can be done ‘behind the scenes’, if your employer is
unwilling to publicise its pro bono work.
IMAGE BY JASON BLACKEYE / UNSPLASH
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PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#2. Working on law reform activities
“There was magic in the room…
a real sense that together we can CASE STUDY 1
use our expertise to reshape the THE CHANCERY LANE PROJECT:
legal landscape so that every
contract and law leads to tangible
UNITED KINGDOM
progress towards a net zero The Chancery Lane Project (TCLP) is a collaborative pro Drafting is just one
emissions economy” bono initiative that mobilises the legal profession to part of the project,
rewrite contracts and laws to tackle the climate crisis. with lawyers then
- Ellie Mulholland, The Chancery Lane Project
amplifying the clauses with their clients and across
Born out of conversations during London Climate
their networks. Since being launched in February
Action Week 2019, the founders recognised that the
2020, the publications have been downloaded
How to get involved: Contact a civil society legal profession is in a unique position to address the
organisation that works on climate matters over 8000 times by users in over 60 countries.
climate crisis as lawyers write the contracts and laws
to ask if you or your firm can contribute to The clauses have been embedded in precedents
which influence decisions made by individuals and
their law reform work. For a list of these of global law firms and multinational companies
businesses.
organisations in Australia, see here. and incorporated into university law courses. In
In less than a year, solicitors, barristers and academics response to the COVID-19 pandemic, TCLP has
from over 80 firms and organisations, including pivoted to virtual events and online collaborative
MinterEllison, Slaughter & May, Hogan Lovells, Norton drafting as they continue to grow the community
Rose Fulbright, Clyde & Co and Airbnb, have set aside and its positive impacts across the globe, including
their professional rivalries to collaborate on the project. in Australia.
After the first legal hackathon in November 2019, Ellie Mulholland, Director of the not-for-profit
TCLP published the Climate Contract Playbook with Commonwealth Climate and Law Initiative, Senior
precedent clauses for lawyers and businesses wishing Associate at MinterEllison and member of TCLP
to drive climate action in their everyday contracts, steering group said, “I think there are a lot of
such as building in green improvement obligations in commercial lawyers who want to do something
supply contracts or back-to-back net zero targets with about the climate crisis, but don’t know where to
suppliers and customers. The Green Paper of Model start. The Chancery Lane Project creates a safe
Laws sets out model laws to accelerate the transition space to innovate. There was magic in the room
to net-zero emissions. Each of the precedent clauses at our first hackathon – a real sense that together
and laws has been given a child’s name to connect we can use our expertise to reshape the legal
to the next generation for whom the changes are so landscape so that every contract and law leads
important. to tangible progress towards a net zero emissions
economy.”
10PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#2. Working on law reform activities
CASE STUDY 2 CASE STUDY 3
DLA PIPER: ETHIOPIA WOTTON + KEARNEY: AUSTRALIA
Since March 2020, DLA Piper lawyers from offices in As part of Wotton + Kearney (W+K) ’s into any emergency legislation. In preparing
Europe and England, along with their relationship commitment to demonstrating environmental this draft, the W+K lawyer identified relevant
firms in Ethiopia and Kenya, have been advising the leadership, the firm has provided legal research emergency laws at both Commonwealth and
Ethiopian Environment, Forest and Climate Change and drafting support to Climate Justice state levels and how this may have reduced
Commission (EEFCCC). The EEFCCC is a Federal Programme (CJP), an organisation which the efficiency of the government response to
Executive Organ of the State of the Federal brings together lawyers and academics for the bushfire emergency.
Democratic Republic of Ethiopia. One of the aims the purpose of developing strategic initiatives
The assistance W+K provided to CJP’s
of the EEFCCC is to build a climate resilient green to address climate change.
submission drew on earlier research
economy by 2025 by ensuring sustainable One of W+K’s lawyers, Johanna Lawlor, conducted by another W+K lawyer to assist
environment and forest management, assisted CJP with the preparation of its CJP with drafting an article on the impact of
development and utilisation. submission to the Australian Royal Commission climate emergency on human rights and the
The EEFCCC is mandated to formulate strategies, into National Natural Disaster Arrangements, human rights frameworks needed to address
policies, laws and standards as well as procedures in which was due on 4 May 2020. The work identified risks, using case studies from both
regard to the environment. Upon approval of these focused on the section in relation to the use a domestic and international perspective.
policies and laws, EEFCCC then monitors and of emergency powers, explaining how
enforces their implementation. DLA Piper lawyers climate change poses a national emergency. “This legal work is incredibly
are assisting EEFCCC with legislation and the The submission highlights increased bushfire important – climate change
establishment of the Environmental Tribunal for risk as one manifestation of the climate increasingly poses one of the
Ethiopia. This will improve access to justice and emergency and the need for emergency action biggest threats to our planet.
enhance enforcement of international and to address climate change, while also ensuring It is a collective endeavour and
domestic environmental laws, policies and principles. human rights safeguards. With the limited collective accountability which
human rights protections that currently exist should be the forefront of all
in Australia, the submission suggests that a
companies and firms.”
national bill or charter of human rights would be
appropriate along with safeguards integrated - Johanna Lawlor, Associate
ROMELLO WILLIAMS / UNSPLASH
11PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#3.
CASE STUDY 1
ALLEN & OVERY: BELGIUM / africa
The Jane Goodall Institute (JGI) is a global community
Offering commercial legal advice conservation organisation that focuses on protecting
chimpanzees and inspiring communities across the world to
to not-for-profit organisations
take action for people, animals and the natural world we all share.
One of JGI Belgium’s primary focuses is reforestation projects to
and social enterprises
combat climate change. Through its Forest in One Day planting
event, trees are planted in Belgium with the help of local forestry
partners. To further increase the success of this annual planting
event and add to its visibility, JGI Belgium recently chose to enter
into a strategic partnership with Luminus.
There are many not-for-profit organisations (NFPs) and social enterprises working to
combat climate change. These organisations often require commercial legal advice
to function. By providing NFPs and social enterprises with pro bono commercial
legal advice, pro bono lawyers allow these organisations to direct their limited
resources towards furthering their mission, rather than paying for legal services.
Allen & Overy assisted JGI Belgium in forming this strategic
Commercial law firms and corporate in-house The case studies below provide several examples
partnership by providing pro bono advice and contract
teams are well suited to this work, as the legal issues of how pro bono legal work can assist NFPs and
drafting expertise. The partnership with Luminus is now
faced by NFPs are often similar to those faced by social enterprises, and allow them to focus on
formalised for a three-year period whereby Luminus provides
commercial organisations. NFPs and social activities central to their mission.
significant sponsoring to support JGI Belgium’s tree planting
enterprises may require legal advice in relation to:
commitments. Yearly, a minimum of 12,000 trees will be planted
• Charity and deductible gift recipient status How to get involved: in Belgium at three different locations during the annual planting
applications • For information about how to source event. In addition, JGI Belgium will plant another 1,200,000 trees
• Commercial agreements (such as leases) pro bono opportunities, see here. per year in Africa.
• For advice about how to partner effectively
• Corporate law JGI Belgium also collaborates with local forestry partners for this
with a NFP, see here.
• Governance purpose. To smoothly manage these relations and extend
• Individual lawyers and in-house legal teams cooperation with different forest groups in Flanders and Wallonia,
• Intellectual property wanting to assist NFPs and social enterprises Allen & Overy has provided JGI Belgium with framework
who are not covered by any other professional
• Tax agreements that can be specifically tailored to all parties’ interests.
indemnity insurance might be eligible for
• The potential legal duty of boards to act on coverage by the National Pro Bono The first planting event since JGI Belgium and Luminus joined
climate change risk.12 Professional Indemnity Insurance Scheme. See forces yielded incredible results. On 2 February 2020, JGI Belgium,
page 39 of this guide for more information. Luminus and forestry partners planted 18,000 trees in Belgium
and 1,200,000 trees in Burundi.
12
For more information on this topic, see: Alexia Staker and Alice Garton, Directors’ Liability and Climate Risk: United Kingdom - Country Paper (Report, April 2018);
‘New legal opinion and business roundtable on climate risks and directors’ duties’, Centre for Policy Development (30 October 2016), accessible here.
12PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#3. Offering commercial legal advice to not-for-profit organisations and social enterprises
CASE STUDY 2 CASE STUDY 3
HALL & WILCOX: AUSTRALIA DLA PIPER: CHINA / FRANCE / JAPAN
Conservation Ecology Centre (CEC) has been a strategic pro bono partner of Hall & Wilcox In 2018, the DLA Piper lawyers from Shanghai and Paris
since 2012. CEC is a registered environmental organisation based at Cape Otway, Victoria, undertook research for the Renewable Energy Institute,
Australia. CEC’s purpose is to generate knowledge to nurture country. The organisation a not-for-profit organisation based in Tokyo engaged
conducts leading conservation and ecological research programs in the Great Otway in studying the realisation of a cross-border renewable
National Park, working to develop and deliver solutions to the most urgent conservation energy power grid in Asia, called the Asia Super Grid. The
challenges in the Otways region. Asia Super Grid initiative aims to interconnect electric
power systems of Asian countries, enabling mutual
PHOTO BY KEITH HARDY ON UNSPLASH
benefits by exchanging abundant natural renewable
energy resources such as wind, solar and hydropower.
As the Paris Agreement enters the implementation
stage, the development of an international power grid
like the Asia Super Grid is critical to achieving 100%
renewable energy.
The research undertaken by the lawyers related to
Since 2018, CEC has been developing a new ecotourism social enterprise, Wildlife Wonders, renewable energy legislation in China as well as the
at Apollo Bay. Wildlife Wonders is due to open to the public in late 2020. The venture will legal arrangements for cross-border electricity supply
offer a world class nature-based experience to visitors to the Great Ocean Road, provide in European countries.
new local employment opportunities and build capacity for conservation work across the
The client publishes their research on
Otways region. Hall & Wilcox has advised on all legal aspects including not-for-profit
the development of a super grid in
structuring and charity registration, governance, funding (including debt and
an annual report on their website.
government grants), property, planning and employment issues. The project is supported
To date, the published research
by the Commonwealth and Victorian governments as well as a number of philanthropic
is focused on the economic
investors. Extensive pro bono support has been provided by Tanarra Philanthropic.
perspectives of an Asia Super
CEC Co-Founder and Chief Executive, Lizzie Corke OAM, commented that, Grid. DLA Piper research will
‘Hall & Wilcox has taken the time to develop a deep understanding of be included in a future report
our organisation which has proved invaluable to our development. In looking at the legal
recent years, Hall & Wilcox has provided fabulous support as we have aspects of the
worked to deliver Wildlife Wonders. This project has required considerable project.
negotiation with a range of project partners and their advisors and
provided us with some insight into the way in which other professional
services firms operate. Hall & Wilcox has invariably offered great expertise,
delivered quickly and taken a thoughtful, problem-solving approach
which has strengthened our partnerships across a range of sectors
and contributed significantly to the project’s success.’
13PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#3. Offering commercial legal advice to not-for-profit organisations and social enterprises
CASE STUDY 4 CASE STUDY 5
LANDER & ROGERS: NORTON ROSE FULBRIGHT:
AUSTRALIA AUSTRALIA
In 2018, Lander & Rogers was engaged to provide advice on a pro In 2018, Norton Rose Fulbright provided pro bono advice to
bono basis to an international, investor-focused not-for-profit an environmental organisation on the introduction of a scheme
company which was working on mobilising the bond market for designed to improve water quality and land management practices
climate change solutions. The organisation promotes investment in and ultimately, reduce the amount of pollution caused by nutrient,
projects and assets necessary for the rapid transition to a low carbon pesticide and sediment entering the Great Barrier Reef catchment.
and climate resilient economy. The scheme helps to build the resilience of the Reef to assist it to cope
with climate change. Under the proposed scheme, land managers
The organisation had representatives in Australia with no
would be able to undertake projects that incorporate improved water
formal employment contracts in place. They required assistance
and land management practices and generate a tradeable unit of
in reviewing their template employment agreement, which was
pollutant reduction (a quantifiable volume of nutrient, pesticide or
drafted for use in the United Kingdom, so that it could be used for
sediment).
Australian employees.
Norton Rose Fulbright’s advice covered:
Lander & Rogers assisted in identifying whether the representatives
were employees or contractors, and then assisted in drafting the • the initial considerations associated with secretariat and
necessary Australian-jurisdiction specific agreements for each governance requirements for the reef credit scheme, including
representative. Additionally, the firm assisted with advice about identification requirements in respect of the credits
intellectual property issues under the contractor agreements. • an assessment as to whether the reef credits would comprise
financial products, and general AFS licensing implications
The work assisted the organisation in lawfully engaging
arising from the scheme
representatives in Australia who could work towards carrying
out the organisation’s purpose. • the tax implications arising from the scheme, with a focus on
Australian Taxation Office registration requirements and
goods and services tax treatment
• counter-terrorism and anti-money laundering requirements
arising from implementation of the scheme.
14PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#4. Establishing a climate justice clinic in collaboration
with a In recent years, several climate justice clinics have been “Prior to participating in the clinic, I didn’t
university established at Australian universities. The clinics typically
operate on a model where:
know how to direct my passion towards the
climate fight… Through my work with climate
• law students provide advice to clients (such as lawyers and seminars with other climate
environmental organisations, activist groups, or
professionals, I made tangible contributions
other not-for-profit organisations working towards
climate justice) on climate-related legal issues, or and learned how to continue making an
they work on law reform activities impact after my placement concluded.”
• pro bono lawyers supervise the work of the law - Rahul, student
students and/or prepare resources to assist the clinic.
help give the law students a better understanding of
The case studies below provide excellent examples of climate justice issues and provide them with valuable
how these clinics can assist social enterprises and not- work experience. Many students are passionate about
for-profit organisations working towards climate justice, social justice. Working at a climate justice clinic
and contribute to meaningful environmental policy introduces them to the pro bono sector early in their
reform. Support from pro bono lawyers is often crucial careers, and encourages them to continue making an
to the success of the clinics. impact after the conclusion of their placement.
The benefits of a climate justice clinic are twofold.
First, it provides the opportunity for clients with limited
How to get involved: Ask a university law school if
they would be interested in collaborating on the
resources to obtain free legal advice, which will help
establishment of a climate justice clinic. Alternatively,
facilitate their mission to combat climate change and
ask if you can contribute resources to an existing clinic.
improve sustainability. Secondly, pro bono lawyers can
IMAGE BY
EDWIN ANDRADE /
UNSPLASH
15PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#4. Establishing a climate justice clinic in collaboration with a university DAN ROZIER / UNSPLASH
CASE STUDY 1
RUSSELL KENNEDY LAWYERS: AUSTRALIA
The Pro Bono Practice at Russell Kennedy seminars with specialist presenters,
Lawyers has partnered with Monash Law and carry out research and prepare
School’s clinical program in running a new legal advice for their clients, under close
Climate Justice Clinic (CJC). Russell Kennedy supervision. Projects have included advising
Lawyers have seconded supervising lawyers to on opportunities for climate litigation, and CASE STUDY 2
the clinic and assisted in preparing the reading strategic policy and legislative analysis ASHURST: AUSTRALIA
and seminar program. The firm has worked to advance climate justice in policy and
Since 2014, Ashurst has partnered with the University of
alongside clinical supervisors and senior government practice. It is hoped that
Melbourne’s Sustainability Business Clinic. The Sustainability
environmental lawyers Ariane Wilkinson (of some of the CJC research will convert into
Business Clinic supports law students, under the guidance and
Environmental Justice Australia) and Hubert strategic litigation, perhaps co-initiated by
supervision of Ashurst lawyers, to provide free legal advice to social
Algie (of Kellehers). firms such as Russell Kennedy Lawyers.
enterprises and not-for-profit organisations that are working in
A pilot clinic ran from August-October 2019, Rahul, a past student of the CJC, said, sustainability fields such as renewable energy, urban planning,
and its success has meant that the CJC is now “The CJC space is incredible farming, food production and conservation.
featured within Monash Law School’s In- as it marries the energy of Law students from the University of Melbourne participate in
House Clinical Placement unit. The CJC gives
University students with the the Sustainability Business Clinic as part of a subject, including
students the opportunity to expand and apply
their knowledge of climate law, develop
expertise of professionals to interviewing clients, attending a site visit, identifying legal issues
create an incredibly powerful and drafting advice. Ashurst lawyers assist the students in scoping
practical lawyering skills, and contribute to
the legal questions, provide feedback on the students’ draft advice
legal interventions that mitigate climate force driving action. Prior to
and settle the final product.
change. Importantly, the clinic also engages participating in the clinic, I didn’t
students with the ethical and political know how to direct my passion Some notable examples of clients of the clinic include:
dimensions of climate justice. In the words
towards the climate fight… • The owner and operator of a community-owned wind farm. The
of CJC founder, Professor Adrian Evans of Sustainability Business Clinic provided legal advice on two separate
Through my work with climate
Monash Law School, a climate justice clinic is a occasions to this client. In 2016, the Clinic provided advice relating
perfect means of targeting our future lawyers, lawyers and seminars with other to suitable co-operative structure arrangements. In 2019, further
and should “play a part in strengthening the climate professionals, I made advice was provided relating to use of land as a community asset
political and social consciousness of the law tangible contributions and and proprietary interests in the underlying land.
students who pass through it.” Students are learned how to continue making • A regional community organisation promoting food security
divided into project teams and assigned a an impact after my placement and social inclusion through community garden and green space.
“real client” such as a non-governmental The Sustainability Business Clinic provided property and planning
concluded.”
organisation, a grass-roots organisation and advice to enable the establishment of a community green space,
an Indigenous-led organisation. They are also which commenced operation in 2018.
working on developing a client base among
The subject is taught by academic and former commercial lawyer
some Pacific Island states. They attend
Brad Jessup, and runs approximately once a year, starting mid-year.
16PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#4. Establishing a climate justice clinic in collaboration with a university
CASE STUDY 3 CASE STUDY 4
UNIVERSITY OF QUEENSLAND GREENLAW: AUSTRALIA
PRO BONO CENTRE: AUSTRALIA GreenLaw was established by law students at the
The UQ Pro Bono Centre recognises the importance ANU College of Law to connect law students with
of students using their emerging legal skills to environmental organisations. Through legal research
advocate on climate change issues that will most projects, it enables non-governmental organisations
acutely impact their generation. to better utilise and engage with the law in agitating
for policy reform. In so doing, they equip tomorrow’s
The UQ Pro Bono Centre established a student-led lawyers with legal research skills and a deeper
Climate Justice Initiative in 2019 to support its strategic goal of environmental understanding of how a changing environment will affect all
sustainability through legal work. The Climate Justice Initiative is a group of senior areas of legal practice in the coming years.
law students who have a demonstrated commitment to environmental law and
climate justice, and who wish to undertake pro bono legal research on climate Established in September 2019, GreenLaw has over 25 active
justice matters. This includes research to support law reform, pro bono legal members and the support of both ANU College of Law academics
work and internal capacity building for the legal assistance sector. and private sector partners. GreenLaw recently made a submission
to the Environmental Protection and Biodiversity Conservation
Recent projects include: Act 1999 statutory review panel based on empirical research into
• A submission to the statutory review of the Environment Protection and whether ‘lawfare’ (the use of legal processes to stall development
Biodiversity Conservation Act 1999, emphasising the need to incorporate proposals) is occurring. This research also forms the basis of a
climate change considerations into existing legislative provisions. scholarly article which has been accepted by the Environmental
• A response to the Royal Commission into National Natural Disaster Arrangements, and Planning Law Journal for publication in July 2020.
contending that federal law reform can improve resilience and adapt to changing The GreenLaw team is also working with activist groups to develop
climatic conditions.
a comprehensive guide to protestor rights in the ACT which will
• The development of a case-law database to identify legal issues faced by climate shortly be publicly available. GreenLaw is currently negotiating the
activists in Queensland. In collaboration with Caxton Legal Centre, this project will final details of a project with Farmers for Climate Action to inform
be updated periodically as litigation in the area develops. their law reform agenda on a National Strategy for Sustainable
• Legal research briefs to support pro bono litigation relating to summary criminal Agriculture.
charges arising from climate protest. This work has been done for and on behalf GreenLaw believes that law students are a powerful resource for
of Brisbane-based law firms. informing policy reform and furthering climate justice, and that
“It is easy to feel helpless in our personal and professional this resource is being underutilised. The team’s strengths lie in
the diversity of their interests and knowledge and their passion
lives as to how we can tackle climate change. We applied
for realising a more just, sustainable future.
for the Initiative in the hope that we could channel our
legal knowledge into a project that enables us to do
something positive for the environment.”
- Climate Justice Initiative students
17PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
#5. Providing a secondee to a
PHOTO BY TOMOKO/UNSPLASH
civil society organisation working
to combat climate change
(or, for individual lawyers or law students, volunteering at such an organisation)
Civil society organisations experience significant Both case studies below are examples of law firms
demand despite limited resources. As a result, one providing a secondee to a civil society organisation
of the most impactful actions a pro bono provider to assist with a specific project at a time of
can take in light of the climate crisis is to provide a significant legal need, following the 2019/2020
secondee to a civil society organisation working Black Summer bushfires in Australia.
to combat climate change through legal advice or
Secondments also offer valuable benefits to the
advocacy. There are a wide variety of organisations
pro bono provider. They can contribute to the
that can be assisted by secondees, including
professional development of staff, raise awareness of
community legal centres, climate justice
climate change issues, strengthen the partnership
organisations and other not-for-profit
between the pro bono provider and the civil society
organisations and charities.
organisation, and improve employee morale.13
Providing a secondee to a civil society organisation
boosts the capacity of that organisation to
undertake important legal work. There are a range
How to get involved:
of ways to provide a secondment: • To learn more about how secondments work,
the benefits they offer, and how to establish an
• full-time or part-time for a fixed period
effective secondment arrangement, please see the
(for example, three, six or 12 months)
following Australian Pro Bono Centre resources:
• sessional (for example, operating an advice
• Australian Pro Bono Manual, Chapter 1.7.7
clinic one afternoon per week)
and Chapter 2.3
• short-term (for example, to cover a staff
• Pro Bono Partnerships and Models: A Practical
shortage)
Guide to What Works, Chapter 22.
• specific (for example, for the length of a project).
• To volunteer as an individual lawyer, contact civil
society organisations directly to ask if you can
assist. Many have formal volunteering programs
which provide training for volunteers. For
a list of these organisations in Australia, see here.
13
For more information, see: Australian Pro Bono Centre, The Australian Pro Bono Manual (2016) Chapter 1.7.7, accessible here.
18#5. Providing a secondee to a civil society organisation working to combat climate change PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
CASE STUDY 1 CASE STUDY 2
MAKINSON d’APICE LAWYERS: AUSTRALIA ASHURST: AUSTRALIA
Following the devastating bushfires in NSW and Victoria in the Ashurst has provided secondment support to
summer of 2019/20, the legal community was called upon to Community Legal Centres NSW in light of the
provide pro bono assistance to the individuals and communities recent bushfires and pandemic.
impacted by the tragedy.
The secondment is aimed at providing background
Justice Connect agreed to coordinate the pro bono response by support direct to Community Legal Centres NSW.
receiving all bushfire-related pro bono referrals from frontline The secondment was deployed in immediate
workers across the two states and connecting them with one of response to the 2020 bushfires and has adapted
the 163 law firms that had answered the call to help. into support during the pandemic. Community
legal centres will be hard hit by surges in legal need
Makinson d’Apice Lawyers sent Pro Bono Senior Associate Ella
and the secondment will remain in place while the
Alexander on secondment to Justice Connect from February to
work remains. Ashurst has assisted in the drafting
June 2020 to be the dedicated bushfire response lawyer in the
and preparation of a sector response to the Bushfire
Public Interest Law team.
Inquiry highlighting the need for funding to assist
In this role, Ella was responsible for speaking to help-seekers to with disaster preparedness in light of the forecasted
identify their legal issues and then finding appropriate lawyers to increasing severity of the environmental crisis. The
assist. This required collaboration with Justice Connect member placement of four part-time graduate secondments
and non-member firms, Legal Aid and a range of community to both specialist and generalist centres continues at
legal centres and bushfire recovery centres across NSW and the time of writing.
Victoria.
“When our centres are under pressure,
Having oversight of all bushfire-related pro bono matters meant our own workload as the peak body
that Ella was able to work with the team to identify and address
increases too. Getting pro bono support at
systemic legal issues facing bushfire-affected communities; for
this time has enabled us to do our bit to
example, through submissions to the Bushfire Royal Commission
respond to this exploding demand for free
and preparation of community legal education resources in areas
of need.
legal assistance. What is needed when
centres are responding to crises is pro
“It was heartbreaking to talk to so many people bono support that is flexible and that can
who had lost their family members, homes and be deployed quickly and without it being
livelihoods in an instant. But I was amazed by their
a burden on the centre. We’ve been very
resilience and inspired to see the legal profession
lucky to receive this.”
come together to support the community in times
of crisis.” - Ella Alexander, Pro Bono Senior Associate - Tim Leach, Executive Director of
Community Legal Centres NSW
19PHOTO BY LILY /
PRO BO N O GUIDE T O T H E CLIMAT E CRISIS
UNSPLASH
#6. providing legal assistance to
Indigenous peoples who are disproportionately
affected by the climate crisis
“As custodians of cultures with holistic and Many Indigenous Australians ‘have demonstrated an
enduring ties to the land dating back at least assertive agency toward meeting the challenges of
65,000 years, Aboriginal and Torres Strait climate change and have instituted a diverse array of
Islander people stand to be uniquely affected initiatives to combat climate impacts’.16 It is crucial that
by accelerating climate change.” lawyers listen to and learn from their clients, and
contribute their expertise where it is sought.
- 2020 Close the Gap Report14
The Centre strongly encourages all lawyers to undertake
cultural awareness training before commencing this work.
Indigenous peoples across the world – including
Reconciliation Australia recommends:
Aboriginal and Torres Strait Islander peoples in Australia
– are disproportionately affected by the climate crisis, • using their ‘Share Our Pride’ resource as a way to
and are already feeling its effects.15 start a cultural awareness journey
To contribute meaningful action on climate change, lawyers • visiting the Supply Nation website to find Aboriginal
should therefore consider directing the focus of their pro and Torres Strait Islander owned companies that can
bono work, at least in part, towards providing legal assistance provide cultural awareness training.
to Indigenous peoples and Indigenous-owned not-for-profit
organisations experiencing the effects of the climate crisis.
How to get involved: You can start by reflecting your
In Case Study 1 below, environmental law charity intention to provide climate-related pro bono
ClientEarth provides an excellent example of how to work assistance to Indigenous peoples in the strategic
with communities affected by climate change – in this case, objectives of your pro bono program, which should be
Torres Strait Islanders whose homes, sacred sites and burial embedded in your pro bono policy. Guidance from the
grounds have been damaged by rising sea levels. Case Study 2 Centre on developing (or refreshing) your firm’s pro bono
demonstrates how a firm can provide practical pro bono policy is available here.17 Then you can start sourcing
assistance to an Indigenous-owned not-for-profit organisation. relevant pro bono legal work.18
14
The Lowitja Institute for the Close the Gap Steering Committee, Close the Gap (Report, March 2020) 40.
15
Melissa Nursey-Bray et al, ‘Old ways for new days: Australian Indigenous peoples and climate change’ (2019) 24:5 Local Environment 473, 473.
16
Melissa Nursey-Bray, ‘Not passive victims: Indigenous Australians respond to climate change’, Foreground (30 August 2019), accessible here.
17
Australian Pro Bono Centre, The Australian Pro Bono Manual (2016) Chapter 1.3, accessible here.
18
For more information about sourcing pro bono work, see Sourcing Pro Bono Opportunities: Justice Project: Pro Bono Tool, Australian Pro Bono Centre (2020), accessible here and Australian Pro Bono Centre,
The Australian Pro Bono Manual (2016) Chapter 1.6.2, accessible here.
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